Standing Committee G

[Mr. Edward O'Hara in the Chair]

Fire and Rescue Services Bill

Clause 33 - Pensions etc

Philip Hammond: I beg to move amendment No. 120, in
clause 33, page 16, line 8, leave out from 'conviction' to 'to' in line 9.

Edward O'Hara: With this it will be convenient to discuss amendment No. 121, in
clause 33, page 16, line 12, leave out subsection (6)(a)(ii).

Philip Hammond: We have moved on from the lengthy subsection (2) to subsection (6). This modest pair of amendments seeks to probe the Under-Secretary for an explanation as to why a different regime of imprisonment on summary conviction is provided for in England and Wales as opposed to Scotland. That is, of course, not a devolved matter, so it seems inappropriate that the penalty for a United Kingdom offence should be different depending on which constituent country of the UK the offender lives in. It is not at all clear why people residing in England and Wales should, on summary conviction, be subject to a prison term four times longer than that for someone residing in Scotland. The amendment would standardise the treatment of offenders in England and Wales with that in Scotland. I await with interest the Under-Secretary's explanation of the discrepancy in the Bill.

Phil Hope: The amendments are misleading because we are dealing with separate criminal jurisdictions. As a result of the commencement of section 154(1) of the Criminal Justice Act 2003, to which subsection (8) refers, the penalties on summary conviction will differ. Sentencing is a matter for the Scottish Executive, and they are awaiting the outcome of the McInnes report, a review of summary justice, before considering any changes to the existing policy. That, I hope, makes it clear that the systems are different and it will be for the Scottish Executive to change their sentencing policy if they wish to match the one that is being changed in the Bill. I hope that with that explanation the hon. Gentleman will withdraw his amendment. If not, I am happy to try to deal with any other queries that he has.

Philip Hammond: I find it deeply troubling that that aspect of devolution means that, where matters are reserved as UK matters, and a single regime applies across the UK, there will not be a single, comparable
 set of outcomes. We are not talking about a nuance; a sentence could be four times greater in England than in Scotland. There is the potential for heightening still further the sense of injustice felt by many English people about the beneficial regime that Scotland appears to enjoy.

Phil Hope: The White Paper, the review of the criminal courts of England and Wales, and the report by John Halliday, ''Making Punishments Work: Review of the Sentencing Framework for England and Wales'', arrived at the conclusion that that should be the punishment for those offences in England and Wales. I emphasise that, because of the different criminal jurisdictions, it is a matter for the Scottish Executive. The equivalent to the Halliday report, which informed the England and Wales divisions, is the McInnes report. It is for the Scottish Executive to decide, in light of that report, whether they wish to continue the different system.

Philip Hammond: I am grateful to the Under-Secretary. I suppose that there is a glimmer of hope in that it is possible that sentencing regimes may be brought into line in future. What I have not heard is an acknowledgement from him that the situation, if it were to continue, would be unacceptable. Will the review that is going on in Scotland require primary legislation to amend the provision in subsection (6)(a)(ii)? If, as he suggests, there may be a change in the sentencing regime, that would presumably require primary legislation. [Interruption.] The Under-Secretary is indicating dissent, as they say in Hansard, from a sedentary position, but it is not clear to me how we would deal with the provision that contains the phrase,
''in Scotland, to imprisonment for a term not exceeding 3 months'', 
if the review going on in Scotland determined that there should be a longer sentence. 
 The principle involved is quite important. Of course, when matters are devolved, there will be different regimes. There will not necessarily be any symmetry in what happens in England and what happens in Scotland, which gives rise to problems of its own. However, when a matter is reserved and this Parliament determines the regime for the whole of the UK, it is wholly unacceptable that sentencing that relates to an outcome of that regime should be a devolved matter. The potential is there for the devolved authority in Scotland entirely to undermine the intention behind the UK policy by decreeing a nugatory sentence for an offence that this Parliament intends to result in a substantial punishment in England and Wales—perhaps up to 12 months in this case. 
 Obviously, if we are simply stuck with a timing discrepancy, and the Scottish sentencing regime is to be brought into line, that will resolve the problem. However, a potentially serious, and broad, issue has been highlighted. It goes a long way outside my brief on local government, and I will want to consult with 
 my colleagues. I will not press the amendment to a Division, but I will want to discuss the wider implications of the matter.

Phil Hope: I cannot speak for the Scottish Parliament. However, I want to emphasise that it is a matter for the Scottish Parliament if it wishes to increase sentences. It has the powers to do so, even though this is a reserved matter, as the hon. Gentleman pointed out. It is for the Scottish Parliament to decide: that is the nature of devolution. The hon. Gentleman may have wider concerns about that, beyond those of the Bill and the clause, but I want to emphasise that that is the situation.

Philip Hammond: I understand the situation and I may indeed have wider concerns, but they are not relevant to this debate. The relevant point is that the clause has drawn my attention to the fact that the Scottish Parliament can, if it wishes, entirely undermine the intention of the UK Parliament in respect of a matter that is incontrovertibly reserved, given that it has control of sentencing for offences committed even in relation to reserved matters.
 On a much wider canvas, sentencing for serious offences relating to significant matters of reserved policy could be entirely undermined if the Scottish Executive were able, for example, to decree a maximum five-day sentence for an offence that in England and Wales carried a maximum five-year sentence—I use an extreme example. The effect of that would be to apply nominally the same body of law in England and in Scotland, but in practical terms to create a situation in which the offence was not punished in Scotland. Surely that is a perverse outcome of the process of devolution. As I said, the issue goes much wider than the narrow confines of the Bill. I am grateful to the draftsman for drawing my attention to something that strikes me as very serious indeed. I hope to return to the issue in another forum, but I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Richard Younger-Ross: I beg to move amendment No. 181, in
clause 33, page 16, line 28, at end add—
 '(10) The Secretary of State shall provide a separate flexible pension scheme for firefighters employed on the retained duty system within six months of the enactment of this Bill.
 (11) The retirement age of firefighters will be determined by their willingness and fitness to serve beyond the age of 55.'.
 I have received a document, which I had not seen before, on part 4, ''Employment'', which goes some way towards answering the questions that lie behind our amendment.

Philip Hammond: Will the hon. Gentleman give way?

Richard Younger-Ross: I have barely started but I will give way.

Philip Hammond: The hon. Gentleman referred to a document, but I missed the title. Would he give it again? Has the document been circulated to the Committee?

Richard Younger-Ross: For the record, I am referring to the note on regulation-making powers in part 4 of the Bill.
 I was seeking to have the Under-Secretary state whether retained fire crews will be entitled to a pension scheme such as that in part 4. Will he expand briefly on that? I also wanted him to explain further the Government's thinking about retirement age. At present, the cut-off is 55. A point put to me by several retained and full-time firefighters is that the rule is nonsense. There should be no reason why someone who is fit and willing cannot continue beyond that age if they wish. With a clear statement from the Under-Secretary, we may be able to move on swiftly.

Philip Hammond: I would briefly like to record my party's support for retained firefighters and our recognition of the need substantially to improve their recruitment and retention. The Under-Secretary will probably agree that, if anything could undermine the modernisation process, it would be an inability to recruit and retain the required number of retained firefighters for the service that is envisaged. Addressing the pensions issue may be only one part of the answer to that problem.
 I know that the hon. Member for Teignbridge (Richard Younger-Ross) represents an area where the fire service is almost entirely made up of retained personnel, but I am not entirely certain that their interest would be best served by a separate pension scheme. I would be grateful if the Under-Secretary could confirm my understanding that the Government are committed to making proper pension arrangements for retained firefighters.

Richard Younger-Ross: The amendment does not say that there should be a separate scheme; it says that there should be a flexible one. I accept the hon. Gentleman's point that the arrangements could come under an existing scheme.

Philip Hammond: With the greatest respect to the hon. Gentleman, the amendment states that the Secretary of State
''shall provide a separate flexible pension scheme for firefighters employed on the retained duty system'', 
which implies that it could not be part of one of the core schemes provided. 
 On proposed new subsection (11), the hon. Gentleman is, frankly, barking up the wrong tree. His proposal simply is not an option. As he rightly pointed out, it is absurd for people to retire at 55 if they are fit and able to serve, but his amendment would give them the option of retirement at 55, as it refers to their willingness to serve beyond the age of 55. Of course, people are entitled to retire whenever they wish, but the implication in the amendment is that they would be entitled to a pension at 55. 
 At the risk of being thought unsympathetic, I do not believe that retirement at 55 is an option in this day and age. Firefighting is hazardous, but it is no more hazardous than many other occupations. I do not have the most up-to-date figures—perhaps the Under-Secretary has them to hand—but I believe that it is the 11th or 12th most hazardous occupation in terms of the number of injuries and deaths per thousand man-days, and that construction and agriculture are far more dangerous, yet no one has suggested that people in those sectors should have a right to retire at 55 on a full pension. That seems a throw-back to a bygone era and inappropriate for the 21st century. 
 As I understand it, and the Under-Secretary may clarify this, retaining a right to retire at 55, regardless of health considerations, would fall foul of the Government's wider proposals for pensions reform and would almost certainly render any such scheme ineffective from a tax point of view. I understand the intention to be that schemes that will benefit from the tax-advantageous status enjoyed by pension schemes would have to drop entitlement to a pension at 55. 
 Although we are happy to support the principle of encouraging and supporting retained firefighters, we do not believe that the amendment would be helpful in achieving that. There are better methods, and I hope that the Under-Secretary will confirm that the Government are committed to those.

Phil Hope: Amendment No. 181 has two purposes. The first would require the
 Secretary of State to provide a pension scheme for retained firefighters within six months of enactment of the Bill. I think that we agree that retained firefighters should have access to a pension scheme in the same way as other employees of a fire and rescue authority. Retained firefighters have been excluded from the current arrangements, although they benefit from the ill-health and injury provisions if they are injured while carrying out firefighting duties. I want to place on record how much we value their contribution and commitment to the service. On my recent visits to Northamptonshire, Cheshire, Cornwall and the west midlands I was extremely impressed by their professionalism and commitment.

Richard Younger-Ross: The hon. Gentleman could come to Devon.

Phil Hope: Yes, I hope to be able to get to Devon at some point to meet retained firefighters in the hon. Gentleman's constituency and representatives of the local authority.
 We believe that all persons engaged in firefighting and other emergency work should be entitled to membership of a suitable pension scheme and to the same benefits. We shall therefore seek to ensure that retained firefighters are members of the same pension scheme as other firefighters.

Philip Hammond: The Under-Secretary referred to people ''engaged in firefighting and other emergency work''. Under the present scheme firefighters are distinguished as a group. Does he envisage that in
 future others who are not firefighters as such would be in the same scheme as firefighters because they were engaged in emergency work?

Phil Hope: The hon. Gentleman may have misheard me. I was referring to the fact that, as we know from the Bill, firefighters also play a role in road traffic accidents and other emergencies. Therefore, ''firefighting and other emergency work'' implies what we have been discussing in the Committee for the last fortnight. Those persons should be entitled to membership of a suitable pension scheme. We indicated that in the note on the regulation-making powers in clauses 33 and 35, to which the hon. Member for Teignbridge referred.
 We hope, in June, to publish for consultation our proposals for the new pension arrangements for firefighters, and we expect them to cover retained firefighters. Subject to the outcome of the consultation, we expect the new pension scheme to be operational from 1 April 2005. That is the time scale for delivering the outcomes sought by the amendment, which I hope the hon. Gentleman will now accept is unnecessary. 
 The second purpose of the amendment is to provide for the retirement age of firefighters to be determined by their willingness and fitness to serve beyond the age of 55. We recognise that the current arrangements, which set a compulsory retirement age of 55 for those other than senior officers in the service, are no longer acceptable. That point was made by the hon. Member for Runnymede and Weybridge (Mr. Hammond). The service needs to retain experienced staff who can contribute to meeting the demands that we are placing on it. Accordingly, we do not intend to specify a compulsory retirement age. Instead, any pension scheme will provide for pensionable age, so that a person who satisfies the fitness requirements for the role in which they are employed and who is willing to continue in service can do so. 
 In our note on the regulation-making powers, we make it clear that the new pension and tax regime, as the hon. Gentleman implied, would not allow firefighters to continue to draw pensions from the age of 50. It also made it clear that we are considering setting a normal pension age of 60, but allowing earlier payment, possibly actuarially reduced, from the age of 55. We are funding research into fitness standards so that fire and rescue authorities have evidence-based guidance on which to make decisions about an individual's fitness to continue in service. 
 I hope that with that clarification of how the new scheme will work and the details about retirement age the hon. Member for Teignbridge will withdraw his amendment.

Richard Younger-Ross: I thank the Under-Secretary for a full and helpful response to our probing amendment. I take on board exactly what he said about moving the retirement age from 55 to 60. We did not include that in our amendment because we were
 uncertain about whether to move from 60 or beyond 60 for the compulsory age. The consultations are considering 60, and we support that in principle.
 To clarify my intervention on the hon. Member for Runnymede and Weybridge, I should point out that I was trying to refer to the document, rather than to my amendment. The document refers to one scheme; I accept that my amendment refers to a separate scheme. We accept the principle outlined in part 4 on employment, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Philip Hammond: Before we move on, we should say something else about pensions, because it is a big issue for the service. My information is that pension costs are about 35 per cent. of total wage costs throughout the service, and that in some of the large metropolitan fire and rescue authorities, 25 per cent. of the revenue budget is consumed by meeting pension obligations. Will the Under-Secretary confirm those figures?
 In the White Paper, the Government said that they would address the pension issue, which is an albatross hanging around the necks of fire and rescue authorities. However, the Bill gives us precious little idea about how they will tackle the problem. To a large extent, the note that the Under-Secretary helpfully circulated, and to which the hon. Member for Teignbridge referred earlier, keeps all options open. From my interpretation of it and the enabling provision, it appears that there will be more than one scheme and that colleagues who work side by side, perhaps one being a firefighter who has ceased operational duties and moved to a non-operational role, may be in different pension schemes with different arrangements. That could cause some difficulties. 
 I understand that there is likely to be a new scheme, possibly funded, for new entrants, while something along the lines of the current scheme would continue for existing members of the fire service pension fund. Will the Under-Secretary confirm my interpretation that there is provision for the establishment of a funded scheme? I know that there is no requirement for it, but the Bill provides the power to establish a funded scheme if the Government decide to do so. 
 Will the Under-Secretary also provide some comparative examples of the burden of pension costs in the fire and rescue service compared with other public services, such as the military and the police? Will he explain why the burden is higher in the fire and rescue service than any other public service?

David Drew: Firefighters always tell me that the simple reason why the burden is higher is that there is a great deal of loyalty to the service. In the fire service, unlike even the police, the tradition is that people serve their time, so, with an ageing work force, there will inevitably be a knock-on effect on pensions.

Philip Hammond: I am not sure that the hon. Gentleman draws a logical conclusion. One would normally expect the pension burden, if one can call it that, to be proportional to the size and cost of the work force; turnover will not necessarily determine it.
 I understand that, under the present system, pension accruals step up after a certain number of years' service, which makes it very disadvantageous for people to leave the service. The Under-Secretary will be able to confirm whether that is correct. If it is, it would explain to some extent the loyalty that causes people to stay in the service for a long time: there is an artificial incentive to stay on for 20 years. I understand that the Government are minded to remove that in the interests of a more open and flexible service, and so as not to disadvantage those who come into the service later in life—something that we all seek to encourage to give the fire service a more diverse experience base. I hope that the hon. Gentleman will be able to explain all those points in more detail. 
 Finally, I want to ask the Under-Secretary about the time scale for some more illuminating proposals. He will know from his discussions with fire and rescue authorities that, alongside the modernisation agenda, which places on them a substantial burden of management initiatives, managing and funding pensions is a constant cause of concern. The White Paper indicated that the Government would address that problem, but clearly that is not done in the documents before the Committee, which simply set out some of the parameters that we are already aware of. When does the Under-Secretary expect more concrete proposals about the future shape of pension arrangements in the service to be published, or at least set out in initial form for consultation?

Richard Younger-Ross: I thank the Under-Secretary for his response on Thursday when he said that the problem of revenue funding for pensions will be resolved and that he is considering bringing in a scheme to deal with it fairly promptly. I hope that he will confirm that. If he can give us a timetable for such a review and say whether it would come into play for the next financial year, that would be beneficial for fire authorities.
 A new scheme can occasionally create anomalies between those on the new scheme and those on the old. I can give a brief example. When the police pension scheme was changed in, I think, 1978, extra rights were given to the partners of officers who had retired and then died. If the officer had not remarried, the wife could get a pension. If the officer retired after 1978 and had remarried, the new wife would get a pension, but if the officer had retired before 1978, she would not. That has created much concern among some officers. I am anxious that we do not end up with the same anomaly for firefighters and that in 20 years' time firefighters are not coming to Members of Parliament, saying, ''It's a very small issue, but it's not fair; my wife now can't get a pension.''

Phil Hope: Clause 33 re-enacts existing powers in section 26 of the Fire Services Act 1947 which allow the Secretary of State to bring pension schemes into operation for persons
''employed by a fire and rescue authority or by a Scottish fire authority''. 
As I have said, we refer to schemes in the plural so that there is no doubt that, as well as bringing in the new pension arrangements that we believe necessary for the new fire and rescue service we can, for example, have a separate scheme for death and injury benefits. I have covered some of this territory in speaking to earlier amendments, so I will try to focus on the particular concerns that Members have raised. 
 On the time scale, we aim to publish our proposals for change in June 2004 with a view, following public consultation, to introducing new schemes on 1 April 2005. It is not possible for me to make a commitment on funding, but I pick up the point about the funded scheme. Subsection (2)(e), which we have just discussed, allows us to create a fund if we wish, and we are still consulting on that. 
 On the wider context, firefighters' pensions are paid from revenue, and fire and rescue authorities treat firefighters' pension contributions as revenue. The figures cited by the hon. Member for Runnymede and Weybridge are correct. Pensions constitute 30-35 per cent. of pay and 25 per cent. of revenue. Central Government revenue support grant reflects year-on-year increases in firefighters' pension costs, but that is, of course, based on average costs across the country rather than the spend of an authority. I made that point to the hon. Member for Teignbridge in the debate on the amendment. 
 Fire and rescue authorities and police authorities have similar problems with the lumpiness of payments for retiring firefighters. I cannot give the hon. Member for Runnymede and Weybridge detailed figures of the police and military pension schemes, but the police certainly experience similar problems on occasion. We considered the issue in 2001, and various solutions were identified, particularly in the context of the modernisation programme. As a consequence, we are providing for an extension of the matters that may be included in any scheme to cover the provision of employer contributions and the payment of contributions into a fund. I confirm that that is not a decision but a proposal out for consultation. It is covered by subsection (2)(e), and it will mean that we can make different arrangements for financing and funding pensions if that appears, following consultation, to be the best practical solution to the problems that confront authorities in financing their pension schemes. 
 I do not have in front of me the details on the anomalies in the existing scheme. I say to the hon. Member for Teignbridge that, obviously, in consulting on the new scheme we will endeavour to consider all the anomalies that have been brought to our attention concerning previous schemes to consider whether they can be addressed. I cannot give him a yes or no answer on that point, because it is a matter that we will consider in June when the paper is out for 
 consultation. If at that stage he feels that we have not covered his point well enough, despite his raising it here in Committee, he can make a contribution to the consultation process.

David Drew: What the hon. Member for Teignbridge said is correct, and I totally agree with him. I have known a couple of occasions where the widow of a firefighter wished to get married again, in one case to another firefighter, and it was financially punitive to do so. We need to consider that. That disadvantage seemed to be unique to the fire service.

Phil Hope: I am grateful to my hon. Friend. As I say, we will endeavour to see what the issues and anomalies are in the current scheme so that we do not create undesirable anomalies in future schemes.
 The clause also deals with matters to do with invoking, varying or revoking a scheme, with issues of consultation and with issues of persons committing offences. We have covered those in debates on amendments. I hope that, given those remarks, hon. Members will agree that the clause should stand part of the Bill. 
 Question put and agreed to. 
 Clause 33, as amended, ordered to stand part of the Bill.

Clause 34 - Information in connection with pensions etc

Question proposed, That the clause stand part of the Bill.

Philip Hammond: I make the following comments so that the Under-Secretary can add to the words ''paranoiac'' and ''preposterous'' the word ''pedantic''.

Hugo Swire: Or ''opportunistic''.

Nick Raynsford: It does not begin with ''p.''

Philip Hammond: My hon. Friend rightly reminds me of the word ''opportunistic'', but, as the Minister of State observes, it does not begin with ''p''.
 Because so many standards slip—there are slippery slopes all around us—it is important to draw attention to some matters, however trivial they may seem at the time. I am curious about the drafting of the clause, particularly subsection (2). My understanding is that subsections of a Bill should always be capable of being read alone and that they refer to other subsections in order to be properly understood. I have never seen a subsection of a Bill begin with the words, ''These are the questions''. What questions? The subsection does not say that the questions are those referred to in subsection (1)(a). 
 I must make a general point. The drafting of the Bill seems to break new ground in several ways. The strange drafting may be an attempt to bring drafting 
 closer to natural language and make the Bill more understandable, but it has the effect of making the Bill more opaque in many cases. Does the Under-Secretary have anything to say about the revolutionary wording of subsection (2)?

Phil Hope: As a Minister in this Government, I am happy to be described as revolutionary. I shall take that back to my constituents and the Labour party members in Corby. I shall put it on the front page of my next newsletter.
 The hon. Gentleman will understand that, however revolutionary I may feel at any moment, the drafting style to which he refers is essentially a matter for parliamentary counsel. No one has ever described them as revolutionary; perhaps they are, for the first time. 
 Before we get too far from our purpose this morning, I must point out that the clause is designed to ensure that firefighters receive accurate information on pensions. I am thankful that very few firefighters were affected by the pensions mis-selling of the 1990s. I am tempted to drift into that territory but shall not. Most firefighters remained in the scheme. The employee's contribution at 11 per cent. is among the highest for any public service scheme, but it reflects the benefits that are available. 
 To avoid the mis-selling of personal pensions to firefighters, clause 34 re-enacts provisions in the 1947 Act that were inserted by the Police and Firemen's Pensions Act 1997. Such provisions will enable fire and rescue authorities to provide information on pensions to firefighters who have opted or transferred out of the pension scheme. 
 On the specifics of one subsection referring to another, subsection (1)(a) refers to providing 
''information in connection with the questions mentioned in subsection (2) to a prescribed person'', 
and subsection (2) describes the questions. The hon. Gentleman may not have seen such parliamentary drafting before, but it clearly and effectively states what it does. I hope that he will support the clause.

Philip Hammond: The drafting is a departure. One would like to think that there is a reason for the words at the beginning of subsection (2) not saying, ''The questions in connection with which a fire and rescue authority may provide information under subsection (1) are'', but the Under-Secretary clearly has not given the matter any thought. It is clear that there is no ministerial style input, but I find it somewhat surprising that parliamentary counsel are able to change the style of drafting. We were told earlier that the explanation for the change of wording between the Fire Services Act 2003 and the Bill was simply that different draftsmen had drafted them. That seems a bit of a hit-and-miss approach, but I am grateful to the hon. Gentleman for at least having a go at explaining the problem.
 Question put and agreed to. 
 Clause 34 ordered to stand part of the Bill. 
Clause 35Preservation of existing pension scheme

Preservation of existing pension scheme

Question proposed, That the clause stand part of the Bill.

Philip Hammond: The clause allows the Secretary of State by order to continue to enforce the scheme established under section 26 of the 1947 Act. I imagine that a year or so ago most people assumed that new pension arrangements would have been brought in. The inclusion of the clause suggests to me that, if Ministers intend using it, there will inevitably be a gap between Royal Assent to the Bill and the 1947 Act ceasing to have effect so that new pension arrangements come into force.
 The Government will have to decide quickly whether to use the power in the clause because there cannot be any discontinuity—an order will have to be made. It seems to me that an order cannot be made under clause 35 until after Royal Assent, yet the 1947 Act will cease to have effect upon Royal Assent. Will there not then be a gap—a lacuna—for the 1947 Act scheme? How will the Under-Secretary deal with it?

Phil Hope: That is entirely the purpose of the clause: to ensure that the current pension arrangements provided by the Fireman's Pensions Scheme Order 1992, which was made under section 26 of the 1947 Act, can continue in operation despite the repeal of the Act.

Philip Hammond: Surely the point is that an order under the Bill cannot be made until the Bill is enacted. Does that not mean that the 1947 Act will have ceased to have effect?

Phil Hope: The commencement of the Act is also by order and that includes the repeal of the 1947 Act, so both measures would happen simultaneously.

Philip Hammond: The Under-Secretary must not get exasperated if we pursue the matter by question and answer. Is he saying that the provisions for commencement allow clause 35 to come into force before the clause that causes the 1947 Act to cease to have effect? That may be the solution: clause 35 comes into effect first and an order under it is made; and later, separately, the clause that causes the 1947 Act to cease to have effect comes into effect. Is that what the Under-Secretary is telling us?

Phil Hope: I refer the hon. Gentleman to clause 58, which makes it clear that parts 1 to 6 come into force in accordance with provision made by the Secretary of State by order. That clause allows us to introduce both measures in a way that does not risk a lacuna, as he describes it.
 The clause would allow the pension scheme to be modified, if we so wished; I have described the arrangements for public consultation. It would also allow for the name of the scheme to be altered. Although it is normally called ''the firefighters pension 
 scheme'', the terms of the 1947 Act require it to be called in any statutory order ''the firemen's pension scheme''—something that is, frankly, out of date. 
 Question put and agreed to. 
 Clause 35 ordered to stand part of the Bill.

Clause 36 - Prohibition on employment of police

Philip Hammond: I beg to move amendment No. 152, in
clause 36, page 17, line 36, at end insert 'as a fire-fighter'.

Edward O'Hara: With this it will be convenient to discuss the following:
 Amendment No. 123, in 
clause 36, page 17, line 37, at end add 
 'but nothing in this section shall prevent a fire and rescue authority entering into arrangements with a police authority for the discharge of any of its functions by members of a police force employed by that police authority.'.

Philip Hammond: Amendment No. 152 would insert the words ''as a fire-fighter'' after the phrase:
 ''No member of a police force may be employed by a fire and rescue authority''. 
The original purpose of the provision in the 1947 Act, as I understand it, was to prevent police constables from being employed as retained firefighters on the slightly curious grounds that such employment might give rise to confusion at the scene of a fire. I am sure that the Under-Secretary will be able to give a robust defence of that and say how such confusion might come about, although it seems to me that the matter could be dealt with relatively easily. However, I suspect that the employment of police constables as retained firefighters is not at the leading edge of most fire authorities' plans for resolving the retained firefighter crisis, given that there is plenty of work to be done in police forces up and down the country.

Nick Raynsford: There are record numbers of police.

Philip Hammond: The Minister of State should come to some of the counties outside the metropolitan areas.

Edward O'Hara: Order. We are talking about firemen, not police numbers.

Philip Hammond: I was looking forward to exploring whether there is a pool of surplus labour in police forces, meaning that police officers could be deployed as retained firefighters to deal with the obvious crisis in that area, but we will leave that for the moment.
 The Under-Secretary might be able to explain to the Committee the original purpose of the ban. It is clear that it was about clashes or confusion relating to operational control at a fire scene. The point has been made—I am sure that it has been made to Ministers as well—that in the future, when fire and rescue authorities will have a much broader role and employ all sorts of people who are not operational firefighters, it will no longer be appropriate automatically to exclude members of the police force from employment in some other role. They could perform a support role 
 or provide specialist input. Not only that, but there seems to be no operational reason to exclude such people.

Hugo Swire: I totally agree with what my hon. Friend is saying. Is not the logical extension that, as police forces continue to employ more and more civilians and community support officers, there will be some people in back-up jobs who will be able to support the fire and rescue services without being front-line firefighters?

Philip Hammond: My hon. Friend is absolutely right. There will certainly be employees of police forces. There may be a distinction between being a member of a police force—I suspect that that means being a constable—and being an employee of a police authority. The Under-Secretary will clarify that point. I see no obvious reason why, in the 21st century, a police officer performing his duties might not take part-time employment with a fire and rescue authority in a non-operational role.
 There may well be police regulations that restrict police officers from taking part-time employment elsewhere. I am not an expert on that. However, that is clearly a separate issue and nothing to do with the provision in the Bill. That simply replicates what was in the 1947 Act, which might have been appropriate in a world in which, for all relevant purposes, the employees of fire authorities were firefighters.

John Pugh: I have two points, and I am sure that the hon. Gentleman will be able to satisfy me on both. If a policeman is working for a fire authority, he is an off-duty policeman. I think that an off-duty policeman may have some residual responsibilities that he must discharge, so there could be a conflict between what the fire authority was asking him to do and what the police authority was asking him to do. Equally, in an emergency, the police authority and the fire authority may simultaneously call on him to go on duty. Which master should he obey? The situation seems confusing if the proviso is not included.

Philip Hammond: I do not entirely agree with the hon. Gentleman. What he says may have some force in general with regard to police officers taking on other duties and employment. That is a separate issue. It is a matter of police discipline and regulations. I do not believe that non-operational roles as an employee of a fire authority are different from non-operational roles as an employee of an education authority or a supermarket chain. The issues that he raised will arise in any employment.
Mr. Raynsford indicated dissent.

Philip Hammond: The Minister of State shakes his head, but non-operational duties as an employee of a fire and rescue authority are not different in character from non-operational duties as an employee of any other body. There is no reason why, if someone is
 sitting behind a desk and reading and commenting on a report, or looking at a forensic analysis of a fire scene, that will cause conflict with his other duties.

John Pugh: The hon. Gentleman must recognise that there is a qualitative difference between one's responsibility as an employee of Tesco, say, and one's responsibility to Her Majesty as a member of the constabulary.
Mr. Raynsford indicated assent.

Philip Hammond: The Minister of State must not keep encouraging the hon. Member for Southport (Dr. Pugh) from a sedentary position.

Phil Hope: The hon. Member for Southport is right.

Philip Hammond: Self-evidently, what the hon. Gentleman said is right, but it is not relevant. The relevant contrast is not between employment as a member of a police force and employment by Tesco, but between employment as a civilian, non-operational employee of a fire and rescue authority and employment by Tesco. It does not seem to me at all self-evident that there is a qualitative difference between those two. Of course, police officers have a particular standing, whether they are on or off duty. I would accept it entirely if the Under-Secretary were to say that it is all academic because police regulations and employment codes prevent police officers from working in certain circumstances, but then there is no need to put it in the Bill. Will he explain why, from a fire and rescue perspective, it is undesirable for police officers to work part-time in non-operational roles and why the restriction should extend beyond that—I understand the reason for extending it to firefighters?
 Amendment No. 123 is a probing amendment. Can the Under-Secretary assure me that nothing in the clause would prevent a fire and rescue authority, if it wanted to, contracting with a police authority to discharge some of its duties in respect of road traffic accidents? That might be required on some occasions, particularly in sparsely populated areas, but clearly the police officers would not become employees of the fire and rescue authority. However, it would be helpful if he placed that on the record for clarification.

Phil Hope: Amendments Nos. 152 and 123 have been helpful in provoking the debate, but I assure the hon. Member for Runnymede and Weybridge that they are unnecessary.
 The clause is designed to prevent a member of a police force from being employed also by a fire and rescue authority, most probably as a retained firefighter, where there would be a conflict of interest between their duties as a firefighter, or in any other emergency role undertaken by the fire and rescue services, and as a police constable. However, the hon. Gentleman is right to pursue the point, because a member of a police force is someone attested as a constable, and the clause would not apply to any other police employee. Therefore, I agree with both the hon. Gentleman and the hon. Member for Southport. The 
 clause would not apply to special constables, for example, even though attested as constables, or to community support officers, whom the hon. Member for East Devon (Mr. Swire) mentioned, who are civilian staff with limited powers. 
 We retain the important provision preventing that conflict of interest. Constables cannot act as retained firefighters, but we allow other employees of the police authority to take on those roles if they wish.

Philip Hammond: The Minister has addressed twice now the conflict that might arise from constables acting as retained firefighters but the amendment draws a specific distinction between constables acting as retained firefighters and constables working in non-operational roles as employees of a fire and rescue authority.

Phil Hope: I appreciate the distinction that is being made. A retained firefighter either firefighting or performing any other role could still create a conflict of interest that would be unacceptable to the police and, in particular, to chief constables.

Philip Hammond: The Minister has again used the term ''retained firefighter''. I accept what he says on that matter. I am considering a situation where, for example, a police officer with particular skills might want to work part-time for a fire and rescue authority in a support role, perhaps using forensic or evidence-sifting skills.

Phil Hope: I fully understand the point that the hon. Gentleman makes. He draws a distinction between firefighting and performing some other role for a fire and rescue authority. None the less, there is still a conflict of interests. The overriding priority for a constable would be to tackle or to respond to an emergency or a crime. That would mean that his ability to undertake other roles was put in jeopardy. Those other roles, while they might not involve fighting a fire in an emergency, may none the less be important.
 It could be crucial that those roles were undertaken. That could jeopardise the ability to deliver services—for example, an important fire safety exercise. We would not wish such extra duties and roles to be jeopardised by a conflict of interests between them and a constable's primary duty as a police officer. Other employees of a police force—community support officers, special constables and other people employed in civilian duties—could take on the role of a retained firefighter or another fire and rescue authority role because there is not that conflict of interests. 
 The clause is not designed to deal with the relationship between a police authority and a fire and rescue authority, nor with the management of its resources by a police authority. Earlier clauses, such as clause 16, would come into play. With that assurance, I ask the hon. Gentleman to withdraw the amendment.

Philip Hammond: I am a little perplexed. The Minister's tone was perfectly reasonable but I sometimes have the impression that, having gone down a route, Ministers then dig in, probably advised that the clause under debate is vital.
 The Minister has adduced no evidence to the Committee that a constable working part-time in a non-operational role for a fire authority is in a different position from a constable working part-time in a non-operational role for any other class of employer. Of course, the Minister can come up with an example of a part-time employee of a fire and rescue authority doing time-critical and vital work, who then gets the summons from his chief constable to perform his police duties even though he is off-duty. That occurs only rarely. 
 The Minister can produce such an example, but a responsible fire and rescue authority would not put someone who was liable to be called away in such a role, any more than they would employ as a retained firefighter someone in another profession who is likely to be unavailable for substantial periods of time because they have other time-critical work to do. I do not suppose that trauma surgeons would be employed as retained firefighters, nor members of the Territorial Army—if that is that organisation's correct title. Those are people who are likely to be called away for other vital duties. 
 It would not be beyond the wit of a fire and rescue authority to manage such a situation. The Minister has not convinced me that employment in a non-operational role with a fire and rescue authority is qualitatively different from all sorts of other employment. 
 There is a bit of a hangover mentality here. Ministers have been at pains to talk about modernising the fire service and moving away from the uniformed, quasi-militaristic 1947 Act structure to a much broader, community-based service, in which many employees might not do any firefighting or operational front-line duties in the conventional sense, but would none the less perform important roles. Yet on this matter the knee-jerk reaction is to think of the fire and rescue service as if it were like the police force or the military, with all sorts of special circumstances. 
 I am surprised at the Minister's attitude. I was not expecting him to say that it was necessary to retain a ban on a police constable taking part-time non-operational work with a fire and rescue authority outside his normal working hours. I find it curious that the Minister finds it necessary to put that into the Bill. I wonder about the rights of police officers to take on other roles outside their working commitments that involve no conflict with their police work. It is not an issue of great political difference; it is a practical question about the working of the Bill. Fire and rescue authorities have raised that question with me and I imagine that the matter has also been raised with the Minister. I shall continue to pursue that question outside the Committee and try to persuade the Minister. 
 I may give the Minister some examples that show that such restrictions are no longer necessary. They point backwards to a structure and character of the fire brigade that are no longer appropriate in a world in which we talk about a community-based fire and rescue service.

John Pugh: The hon. Gentleman advances a powerful argument for his original amendment; he certainly improves our understanding of it. However, there is still the possibility of a real confusion of functions. A private employer and a police force rarely have much to do with one another unless the scene of a crime is connected with the private employer. However, there is a range of things in which both the fire service and the police service are involved, such as investigations into accidents. If there were people working for both services, that would introduce a complication that would not exist if a police officer worked simply for a private firm. Does the hon. Gentleman not accept that?

Philip Hammond: Of course, it would depend on the role; fire and rescue authorities would have to be careful about that. However, a significant number of fire and rescue authority employees do not perform duties that would give any cause for conflict. I am mindful of the need for police employment regulations to prevent the sort of situation about which the hon. Gentleman speculates, but that can be done by police employment codes and regulations. It is not necessary to write a total prohibition into the Bill.
 If I had a little more time, I am sure that I could think of examples of things that police officers might want to do that it would be absurd to ban them from doing because of the notion that their doing them would bring into danger the whole emergency service structure. I hope to persuade the Minister outside the confines of the Committee. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 36 ordered to stand part of the Bill.

Clause 37 - Duty to secure water supply etc

Question proposed, That the clause stand part of the Bill.

Philip Hammond: Perhaps the Minister can confirm that clauses 37 to 40 essentially re-enact the regime of the Fire Services Act 1947 and the Water Industry Act 1991. In other words, we are getting the status quo. Until recently, the 1991 Act was the longest piece of legislation that this Parliament ever passed, and it is very complicated. Without ploughing through it all, can the Minister tell us whether we are re-enacting the status quo? If we are not, will he draw our attention to the differences? Will the Minister tell me why it is necessary to repeat in the Bill provisions in the 1991 Act? Why deal with matters such as the supply of water by water undertakers, which are already dealt with in that Act?

Nick Raynsford: The hon. Gentleman is right that the general effect of the part 5 clauses is to re-enact the provisions in the 1947 Act. There are one or two changes that reflect change in practice, notably the charging regimes that relate to the 1991 legislation,
 and therefore there are exemptions in respect of the requirement for water for firefighting purposes, which have been introduced since 1947. Otherwise the provisions are exactly as envisaged in the original legislation. I hope that that explanation allows us to move rapidly through the clauses.
 Question put and agreed to. 
 Clause 37 ordered to stand part of the Bill.

Edward O'Hara: While I am on my feet, I draw hon. Members' attention to the fact that extraneous reading matter should not be perused during Committee proceedings.
 Clause 38 ordered to stand part of the Bill.

Clause 39 - Emergency supply by water undertaker

Question proposed, That the clause stand part of the Bill.

Philip Hammond: Clause 39 provides that, while carrying out the request of a fire and rescue authority to provide a supply of water at requisite volume and pressure, the water undertaker will not be liable for action by any other party who, for example, finds that his water pressure has dropped. As anyone who has had their water pressure drop will know, there can be some unpleasant side effects of the water supply drying up. It can take a while for a potable supply of water to be resumed, because all the muck on the inside of the pipes ends up coming out of the taps. However, in the circumstances of a major fire event, it is right that the requirements of firefighting should take precedence.
 Although I understand the provision that there should be no liability to third parties, would it still be a requirement on the statutory undertaker to make an emergency supply of water available if the supply was shut off for firefighting reasons, as happens when the supply is shut off for any other reason for any length of time? Standpipes clearly would not work if the supply had been shut off, so we would be talking about an obligation on water authorities to provide water by tanker to affected households. A major fire could occur, and water might have to be diverted over a whole night or longer. Can the Minister reassure us that although the water undertaker could not have action taken against him for failure to deliver a water supply in accordance with his normal statutory duty, he would still be required to make alternative emergency provision for the households affected?

Nick Raynsford: I can give the hon. Gentleman the important assurance that the obligations under the clause relate to the supply of water for the purpose of extinguishing a fire. There is a clear obligation on water undertakers to ''take all necessary steps''—and the use of the word ''necessary'' is rather important—to increase
''supply and pressure of water for the purposes of extinguishing a fire''
 if requested to do so by a fire and rescue authority. 
 The hon. Gentleman asked an interesting question about the knock-on consequences for other water users. Of course, that is not strictly within the remit of the Bill, so I am afraid that I am not able to give him the precise assurance that he is seeking, but I will of course write to him when I have made further inquiries, as the issue goes wider than the Bill. 
 I thought for a moment that we would have a foray into the problems of water supply when the hon. Gentleman described the consequences of interruptions in potable water supply—I thought that we were about to get an advertisement for Coca-Cola, which appears to be trying to bottle water from the mains and sell it at an absurd price to a gullible public. Fortunately, we did not stretch to going down that route, and you did not have to call us back to order, Mr. O'Hara. With that assurance, I hope that the hon. Gentleman is happy for clause 39 to stand part of the Bill. 
 Question put and agreed to. 
 Clause 39 ordered to stand part of the Bill. 
 Clause 40 ordered to stand part of the Bill.

Clause 41 - Fire hydrants

John Pugh: I beg to move amendment No. 188, in
clause 41, page 19, line 13, at end insert—
'(a) where such a notice or mark would be fixed to a listed building the Fire and Rescue Authority shall consult with the Planning Authority on the appropriate style and fixing of the notice or mark.'.
 The amendment is not at all inconsistent with the thrust of the legislation. It is an attempt to get some clarification on the sensitive matter of civic architecture, I guess. It is quite clear that there must be obvious and easily identifiable forms of marking for the location of fire hydrants, and the water authority must ensure that there is a realistic expectation that one will find a hydrant in one place rather than another. Signage must be clear, obvious and easily detectable in an emergency. However, there are other issues in certain areas, one of which is aesthetics, building construction, and so on. That ought to be taken into account, rather than the water undertaker having the right simply to slap a sign wherever he feels it should go. 
 I do not necessarily argue that the local civic society should chose the location of a fire hydrant or a sign for it, but we need to achieve a balance. It may be that that balance is indirectly achieved through the consequential effects of the legislation, which may have no power to overrule ordinary planning rules and regulations. The amendment is designed to find out whether that is the case, and whether the balance will be achieved. That is why we are simply asking for there to be consultation with the planning authority on the appropriate style and fixing of the notice or mark. The fixing and placing is probably more important than the 
 style, because there is probably a requirement for uniformity of style. I am not sold on any tweaking of the amendment.

Philip Hammond: I am glad that the hon. Gentleman made that point about style, because uniformity is absolutely critical. Is there a problem that needs fixing? Fire hydrant signs are always little yellow notices about 6 in square, and if he walks around London, he will see them affixed to the most historic and illustrious buildings without having caused anyone, and certainly not me, any distress or concern. Is he aware of a specific problem that needs addressing?

John Pugh: The hon. Gentleman is far more observant than I am, and has no doubt looked at fire hydrants across the land. I think that there is a possibility of their not being placed in an appropriate place; in fact, some are not. There is sensitive consultation in most places, but there does not seem to be any requirement for sensible consultation. We are merely asking for such a requirement in the Bill.

Nick Raynsford: I have a great deal of sympathy for the hon. Gentleman, as he has clearly been landed with the task of moving the amendment because his colleague, the hon. Member for Teignbridge, has had to go to an Adjournment debate in Westminster Hall—as, indeed, has my hon. Friend the Under-Secretary. The hon. Gentleman has been landed with this somewhat bizarre amendment.
 I understand that the hon. Member for Teignbridge has a background as an architect, and I thought that, if he was here in time to move the amendment, we would hear a very interesting case for neo-Gothic hydrant markers or some other bizarre arrangement, and I am pleased that the hon. Member for Southport recognises that that is not appropriate. 
 Fire and rescue authorities are aware that they must balance the need for visibility of notices and marks for fire hydrants with respect for the location in which they are sited and the wishes of the owners of property, whether listed buildings or otherwise. Although the notices are the responsibility of the water undertaker, they are fixed in a position agreed by the authority, and rightly so, because they are there for operational reasons. They are sometimes affixed by the authority, because it is important that firefighters arriving at an incident can locate the nearest hydrant without delay. I understand that fire and rescue authorities discuss with property owners the siting of any marker and, when necessary, use alternative means of indicating the hydrant, such as painting its cover yellow. In addition, many authorities are developing the use of global positioning systems to locate hydrants to reduce their dependence on notices or marks. 
 The amendment would not be helpful and it is somewhat bizarre that it would be appended to a subsection that is concerned with expenses rather than the siting of hydrants. I hope that the hon. Gentleman will withdraw it.

John Pugh: It is a great loss for the Committee that my hon. Friend the Member for Teignbridge has had to leave us and cannot enlarge on the civic vices that may
 occur if the amendment is not incorporated into the Bill. However, I accept the Minister's assurances and the sensitivity of his reply. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 125, in
clause 41, page 19, line 25, after 'authority,' insert
'authorised by an agreement made under section 38'.
 This amendment would amend subsection (6), which deals with the circumstances in which a hydrant is permitted to be used otherwise than for the purposes of firefighting. Hydrants exist primarily for firefighting, but they are also used for other purposes. They are a handy means of temporary access to water for construction work in the street, and contractors working for local authorities might enter into arrangements with water undertakers to obtain water from a fire hydrant to water plants. We are all familiar with walking down the street and seeing a fire hydrant cover open and a standpipe affixed to it for a proper purpose. 
 Water undertakers are commercial businesses and if they enter into arrangements with people who want to use their water in that way they should extract a commercial charge for allowing them to do doing so. There are no problems with that. However, subsection (6) limits the offence to anyone taking water from a fire hydrant other than 
''(a) for the purposes of fire-fighting or for any other purposes of a fire and rescue authority, or 
 (b) for any purpose authorised by the water undertaker or other person to whom the hydrant belongs.'' 
The Bill seems to create a gap. Fire and rescue authorities can take water without agreement or consent for firefighting purposes, as has always been the case, and other people can take water for any purpose that is agreed with the statutory undertaker or the owner of the hydrant. However, subsection (6) creates a situation in which a fire and rescue authority can take water by right for any purpose. We all know, following our consideration of earlier parts of the Bill, that the purposes of such authorities are no longer limited to firefighting or even to emergency functions. They include, for example, contracting, for a fee, to fill someone's swimming pool or ornamental pond. A fire or rescue authority might even be tempted to fill bottles with tap water for the supplier the Minister mentioned earlier—to which I do not wish to give further publicity. 
 There is an anomaly. It cannot be intended that a fire and rescue authority should be entitled to take a supply of water without paying for it in order to deliver functions that it has chosen to undertake under clause 12. That could give the fire and rescue authority a commercial advantage over other suppliers. We do not want authorities going into the business of municipal plant watering simply because they have free access to the hydrants of the statutory undertakers. That would be inappropriate, and unfair to the statutory undertakers. The amendment would remedy that by limiting the right of a fire and rescue authority to take a supply of water for purposes other than firefighting 
 to circumstances in which it has entered into an agreement with the water undertaker under clause 38, so that proper arrangements are made for payment and so forth. 
 Although there are provisions in the Water Industry Act 1991 for charging for an emergency supply of water, I am not aware of any provision in it for the automatic charging of fire authorities for a non-emergency supply of water. I offer the example of the local fire service undertaking for a fee to fill the Minister's ornamental garden lake. I know that he is held in high regard by the firefighters in Greenwich, and I am sure that they would be anxious to turn out to fill his lake when the water level gets low in the summer. They might want to charge for that, and the water undertaker should be able to charge them or to refuse to allow its supply to be used for that purpose. Unless I am much mistaken, the Bill gives a fire and rescue authority the automatic right to extract water from a hydrant for any purposes, including non-emergency purposes.

Nick Raynsford: I understand the hon. Gentleman's arguments, but unfortunately the amendment would not achieve his purpose. The powers under clause 38 are conditioned by the duty in clause 37(1):
 ''A fire and rescue authority must take all reasonable measures for securing that an adequate supply of water will be available for the authority's use in the event of fire.'' 
The safeguard is that agreements under clause 38 can be made only for the purpose of what is referred to in clause 37(1).

Philip Hammond: Having sat down, I turned the page of my notes and saw the point that I was going to own up to—that the amendment is incorrectly drafted. Clause 38 is not the provision under which an agreement would be made for use of water for non-emergency purposes, for the reason that the Minister has just explained. However, as I understand it, under clause 41(6)(a) a fire authority has the right to take water for other purposes.

Nick Raynsford: The hon. Gentleman is right. We drafted this deliberately because there are circumstances other than directly fighting fires in which it would be wholly reasonable for a fire and rescue authority to have access to a supply of water. The obvious example is individual employees of the authority taking water from a hydrant in the course of carrying out routine tests to ensure that it is working effectively. Another example is in the event of a major terrorist incident where there was a requirement for water for decontamination. We felt that it was unduly restrictive to limit this provision solely to the circumstances envisaged in clause 38. The amendment would prevent fire and rescue authorities from operating in the public interest.

Philip Hammond: The Minister has made a good case for not restricting the rights of fire authorities to take water to firefighting. He has made the case for
 extending it to other emergency functions, but he has not addressed the clause 12 activities of a fire authority or the filling of the ornamental lake. It would be helpful if he could say at the very least that he would not expect fire authorities to draw water under the powers granted in subsection (6)(a) for the purposes of activities for which they were charging third parties, other than with the agreement of the statutory water undertaker and, by implication, with proper recompense made to the statutory water undertaker for the water taken. As I understand it, the only statutory provisions for the payment of compensation to the statutory water undertaker are under section 147 of the Water Industry Act in respect of water used for emergencies.

Nick Raynsford: The hon. Gentleman has come to the critical point here. The 1991 Act does allow the water companies to charge for non-emergency use of water. Therefore, if I did have an ornamental lake at my house in Greenwich, as sadly I do not, I would not be able to ask the London Fire and Emergency Planning Authority to come and fill it up with water taken from Thames Water free of charge. I can see that this scenario is very attractive to the hon. Gentleman, but it has no relation to reality and is not one that would arise in practice.

Hugo Swire: Subsection (6)(a) and clause 37(1) refer to the fire and rescue authorities and the use that they can make of fire hydrants. Will the Minister enlighten the Committee as to what access to these hydrants the military would have in an emergency? Perhaps that is covered by legislation elsewhere. Would the military be in contravention of subsection (6) if they required access to these fire hydrants in the absence of the fire and rescue services?

Nick Raynsford: The hon. Gentleman raises a most interesting question, but again it goes far wide of my responsibility. I will have to seek further advice and write to him, to tell him whether the military will have access, and if so, on what conditions. This Bill is concerned with the fire and rescue services' access to fire hydrants. We believe that we have a correct and proper balance, which ensures that the fire and rescue service can discharge its responsibilities in a range of circumstances in the most effective way possible, and that there is flexibility to cover circumstances other than firefighting, as I explained earlier to the hon. Member for Runnymede and Weybridge. With that assurance I hope that he will now withdraw the amendment.

Philip Hammond: I shall seek just one further piece of clarification from the Minister. The essence of his argument in dealing with this substantive point is that there is no need to worry, because if a fire and rescue authority draws water other than for an emergency purpose, there are provisions under the Water Industry Act that require it to pay for that water—as opposed to enabling the statutory undertaker to enter into an agreement with it. I am not sufficiently familiar with that Act to know where they are. I know that section 147 lays down provision for charging for
 emergency use of water. Where in that Act I would find a provision that says that if a fire and rescue authority, using the powers under clause 41(6)(a), draws water for a non-emergency purpose, the statutory undertaker automatically has a right to charge for that water?

Edward O'Hara: Order. I think that the Minister has heard the hon. Gentleman, and he may well respond, but I think it takes us beyond the provisions of the Bill before us today.

Nick Raynsford: I am happy to write to the hon. Gentleman to clarify the particular provisions under the 1991 legislation that cover the charging regime that I have described. However, as I am sure he will understand, this is outside the provisions of the Bill, and I am not entirely familiar with all the provisions of the 1991 Act—but I am happy to write to him.

Philip Hammond: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Jim Knight: I do not want to take up much of the Committee's time in a stand part debate, but there are a couple of issues that I wish to raise with the Minister about charging for water supply and fire hydrants. I would like him to reflect on them and come back to us either today or later.
 Dorset fire authority has written to me about the matter, because its chief fire officer, Martin Chapman, represents the Chief and Assistant Chief Fire Officers Association on water supply issues. He is concerned about damage caused to fire hydrants and how that is charged for. The Bill clearly states that third-party damage is not paid for by fire authorities, but I am told that in practice it is difficult to identify the perpetrator if it is an act of vandalism. Therefore, it is difficult for fire authorities to defend against paying the repair and maintenance bill. 
 In many cases, firefighters and operational crews inspect hydrants to make sure that they are functioning and to ensure safety. I am told that the annual cost of that in Dorset is £124,000 a year, which is a significant cost to the council tax payer. I ask the Minister to reflect on whether it is possible to stop fire authorities having to pay those costs by putting the requirement on water companies to maintain their fire hydrants. That would mean that the water bill payer would pay. 
 While we want to constrain escalating costs of water bills to consumers, the point is that water bills and water companies are regulated by the Office of Water Services. There is no regulation of the charging that water companies make to fire authorities for work carried out. There is certainly no regulation of the work that fire authorities have to carry out to maintain hydrants. If fire authorities no longer had to pay those costs, that redirection of resources from intervention to preventative work would clearly be in line with the Government's modernisation agenda. 
 When the Minister reflects on that annual cost to Dorset of £124,000, I ask him whether he could give me an answer in respect of subsection (8), about what level 2 is on the standard scale of fines. If we, as council tax payers in Dorset, have to cover the cost of vandalism, I would be interested to know what fine the vandal would have to pay if caught—which I am told would be unusual.

Nick Raynsford: My hon. Friend raises some important points. I am a little concerned to hear the figures of the estimated cost in Dorset of repairing damage caused by acts of vandalism to fire hydrants.
 The regime that will be put in place by the Bill, which largely re-enacts the provisions of section 14 of the 1947 Act, provides that the repair of hydrants will be charged to fire and rescue authorities unless it is clear that the damage was done by other licensed users. Clearly, fire and rescue authorities need to record the use of hydrants and to develop good working relationships with water undertakers through liaison groups, to ensure that they pay only reasonable costs. 
 The issue is an important one and the national water liaison group, which includes representatives from the fire and rescue authorities, the water undertakers, DEFRA and the ODPM, has issued guidance on the management of hydrants to reduce the costs associated with inspection and testing and to ensure that brigades have a policy on dealing with the decommissioning of hydrants no longer required. This is an important issue. I am slightly concerned, because it is not an issue that the Local Government Association raised in its briefing on the Bill. I undertake to my hon. Friend to look into the matter and to write to him about it. 
 On my hon. Friend's technical question about subsection (8), level 2 fines do not exceed £400.

Philip Hammond: Will the Minister confirm—the question asked by the hon. Member for South Dorset (Jim Knight) implied this—that the fine is for acts of vandalism against fire hydrants? Are not the majority of cases brought under the provision likely to be for obstruction of a fire hydrant—when someone has parked a vehicle to obstruct it? The level of the fine should reflect the fact that the offence of obstruction is dealt with in the same way as the offence of damage, although no monetary consequences arise from the offence of obstruction.

Nick Raynsford: If the hon. Gentleman looks carefully at subsections (6) and (7), he will see that the latter refers to a person committing an offence
''if he damages or obstructs a fire hydrant''. 
Therefore, the provision will cover the eventuality about which he is concerned. I have undertaken to write further to my hon. Friend on the issue, but the general provisions of the clause, which is concerned with the fitting, marking and operation of fire hydrants, are necessary and sensible for the 
 maintenance of the work of the fire and rescue service throughout the country. I hope that Members will agree that the clause should stand part of the Bill. 
 Question put and agreed to. 
 Clause 41 ordered to stand part of the Bill.

Clause 42 - Notice of works affecting water supply and fire hydrants

Philip Hammond: I beg to move amendment No. 126, in
clause 42, page 19, line 35, leave out from 'give' to 'in' in line 36 and insert
'notice as soon as practicable of his intention'.

Edward O'Hara: With this it will be convenient to discuss the following:
 Amendment No. 127, in 
clause 42, page 19, line 37, leave out from 'give' to first 'in' in line 38 and insert 
 'notice as soon as practicable of his intention'. 
Amendment No. 128, in 
clause 42, page 19, line 40, leave out subsection (3).

Philip Hammond: Subsections (1) and (2) make provision for specific notice periods to be given by persons carrying out works on the water supply network or on a fire hydrant. Subsections (4) and (5) provide that failure to give such notice is an offence and deal with the punishment to be meted out.
 Subsection (3) drives a coach and horses through the whole structure with the undoubtedly sensible and pragmatic approach that, where it is not practicable to give longer notice, a person will avoid committing an offence by giving notice ''as soon as practicable''. That could be an hour before the works commence. Indeed, some circumstances, such as a major water leak or a burst main, will almost certainly require very short notice. 
 The requirement in subsection (1) for six weeks' notice is excessive and bureaucratic. Given the provisions of subsection (3), it is extremely unlikely that anybody will be prosecuted for failing to give six weeks' or seven days' notice provided that they give some notice. They will be rescued by the provisions of subsection (3). Amendment No.126 would not allow the law to make an ass of itself, by creating a regime of requirements and then a clear route through that regime, which I suspect will be followed in most cases. 
 I am opposed to the creation or maintenance in being of meaningless offences. It might have seemed appropriate in 1947 to require six weeks' notice, but things happened rather more slowly then. No doubt the notice was sent by post—although it might have got there rather quicker in those days. Changing the arrangement so that notice must be given as soon as practicable—as soon as the person doing the work knows that he will be doing it—is much more straightforward. I would like to hear what the Minister has to say on the issue. 
 Rather than raise an additional point in a stand part debate, I would like to ask the Minister now what happens in practice, because it is pertinent to the amendments. How much notice do fire authorities need? How much do they routinely get? Is there a problem, or does the system work well when notice is given as soon as practicable by those—typically, though not necessarily, the statutory undertaker—who will be carrying out the works? If fire and rescue authorities can work satisfactorily with a few days' notice, and on some occasions with much shorter notice, I see no reason why that should not be formalised in the Bill.

John Pugh: The clause certainly requires clarification. It is clearly important that hydrants are not tampered with, so that when disasters occur, they are not found to be deficient. At first I was slightly unsympathetic towards amendment No. 127, because the hon. Gentleman seemed to want to replace the fairly precise term of ''seven days'' with the fairly debatable term ''as soon as practicable'', and I could see problems ahead. If, for example, it were suggested that there had been a breach of the regulations, there would have to be a process to enable us to decide how the term ''as soon as practicable'' could be applied. It seemed to me that a possible reason for a minimum of seven days' notice was to rule out abuse. One can imagine people on a building site, for instance, simply phoning up the fire and rescue authority and saying ''That's as soon as practicable.''
 I may be misunderstanding subsection (3), but it seems to undo the precision of subsections (1) and (2), so I do not know where the clause is going. If the Minister of State can assist us, I shall be in his debt.

Nick Raynsford: As the hon. Member for Runnymede and Weybridge rightly surmised, the provision dates back to 1947; it re-enacts sections 16(1) to (3) of the Fire Services Act of that year. Although he may well be right that communication was slightly slower then because it depended on the post rather than the internet, there was clear logic behind the provision. Let me try to explain that logic.
 Subsection (1) provides that a person who proposes to carry out works for the purpose of supplying water to any part of the area must give at least six weeks' notice in writing to the authority. If hon. Members think about the issue, they will realise that when a new development is being planned it is important that the fire and rescue authority has good advance notice, so that it can make observations that might be germane to the siting of hydrants or the availability of water to deal with an emergency. In the case of the works generally associated with new development, it does not seem unreasonable to require six weeks as the norm. 
 Subsection (2) provides that the person who proposes to carry out works affecting a fire hydrant must give at least seven days' notice. That is clearly a lesser obligation, where there is a need for maintenance or works affecting a hydrant. Nevertheless, the fire and rescue authority should still know about such work in advance, so that it can make alternative arrangements if necessary in the knowledge 
 that a particular hydrant may not be available for a period. Again, that is a sensible and reasonable provision. Its purpose is to give the fire and rescue authority some certainty and to make the contractor aware of the time expectation. 
 Subsection (3) copes with emergency circumstances in which it is not practicable, for whatever reason, to comply with the seven-day or six-week notice period. We would not want it to apply with any frequency, but we can all envisage circumstances in which, in an emergency, work must be done immediately to a water supply that will interrupt a hydrant. If, for example, there is a serious risk of flooding as a result of burst pipes, it would be absurd to say that the contractor cannot carry out any work for seven days because there is no relief from the obligation to provide seven days' notice. Subsection (3) is therefore necessary as a safeguard and contains the term ''as soon as practicable''. Clearly, someone who went ahead and carried out the work regardless could be challenged for that action, even though there was no good reason for not giving notice. The provisions are sensible and benefit from having been tried and tested over a long period. 
 The hon. Member for Runnymede and Weybridge made the point that there was no reason to change something that was not broken. I hope that he will recognise that this practical, workable arrangement has not caused any complaint.

John Pugh: Has the Minister consulted the construction industry? It is important that it, too, understands the provision.

Nick Raynsford: I have not recently met representatives of the construction industry. I had detailed involvement with it during the four years in which I served as Minister with responsibility for it, but I have not consulted it on this issue.
 The fact that the provision is now being re-enacted will help to clarify the expectation that the periods must be adhered to as part of the normal development process. My experience is that most developers get legal advice. Their lawyers would not be acting properly if they failed to draw such obligations to their attention. 
 I hope that the hon. Member for Runnymede and Weybridge will recognise that his amendment is not helpful, as it would create uncertainty and leave room for argument and for failure to give advance notice. Indeed, it might well encourage a failure to give the advance notice that is essential to the fire and rescue service. I therefore hope that he will agree to withdraw the amendment.

Philip Hammond: I am not sure that the Minister's last comment is right. Subsection (3) provides that if it is not practicable to give the notice required under subsections (1) and (2), notice must be given ''as soon as practicable''. The amendment requires that in every case notice be given as soon as practicable. In some cases, that would be much earlier than six weeks. To use the Minister's example of new developments, it
 would be appropriate to give notice once arrangements had been entered into with the statutory undertaker and the scheme was known.
 However, I shall not press the point. I wanted to hear from the Minister about current practice, but I do not believe that we actually heard anything about it. I am prepared to stick my neck out and guess that less than statutory notice is given in many cases, but that the system copes with that perfectly well. I am curious as to whether any prosecutions have been made under the relevant sections of the 1947 Act. I notice that the Minister is not leaping to his feet to enlighten the Committee about that, and I suspect that the answer is that there have been none. 
 Before we conclude, I wish to ask the Minister another question about subsections (1) and (2), which require that notice be given in writing. My understanding was that legislation passed in this place states that the requirement in statute for notice in writing is to be construed as allowing electronic forms of communication. However, a doubt has entered my mind because of the Government's tabling new clause 6, which appears to make special provision for such communication. Can the Minister confirm that notice in writing under subsections (1) and (2) could, by virtue of other legislation, be given by electronic means? If so, how is that notice different from the notice under clause 44, for which new clause 6 makes specific provision in respect of electronic communication? I am sorry, I must correct myself: it is not clause 44 but clause 46 that requires notice.

Nick Raynsford: I was becoming a little uncertain as to which clause I needed to discuss, but let me deal with the key point. The convention that the hon. Gentleman refers to is correct, in that the word ''writing'' can include all forms of written communication, including e-mail. That interpretation remains correct, and new clause 6 is necessary so that service can be proved in particular circumstances. But that is not a reason—

Edward O'Hara: Order. We should not be going too deeply into new clause 6 at this stage.

Nick Raynsford: We will no doubt come back to new clause 6 later. I hope that, with the assurance that electronic communication is acceptable and satisfies the conditions in the clause, the hon. Gentleman will agree that he can now withdraw his amendment.

Philip Hammond: I am grateful to the Minister. He has resolved the mystery relating to clause 42—and created a deeper one, in my mind, in respect of clause 46. However, as you rightly say, Mr. O'Hara, we shall come to that issue in due course. In the meantime, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 42 ordered to stand part of the Bill. 
Clause 43Powers of fire-fighters etc in an emergency etc

Powers of fire-fighters etc in an emergency etc

Philip Hammond: I beg to move amendment No. 129, in
clause 43, page 20, line 13, at end insert—
'(aa) if he reasonably believes a fire to be about to break out, for the purpose of preventing the fire or protecting life or property.'.

Edward O'Hara: With this it will be convenient to discuss the following:
 Amendment No. 130, in 
clause 43, page 20, line 18, at end insert 
 'and for the purpose of protecting life and property.'.

Philip Hammond: The clause deals with the powers of firefighters in an emergency. Amendment No. 129 is intended to make what appears to me to be an essential extension to the powers proposed in the Bill. It would enable firefighters to deal with a situation in which a fire was about to break out. There are powers in the Bill for a firefighter to
''do anything he reasonably believes to be necessary— 
 (a) if he reasonably believes a fire to have broken out, for the purpose of extinguishing the fire or protecting life or property'', 
and there are similar provisions in relation to road traffic accidents and other emergencies. Subsection (1)(d) mentions acting 
''for the purpose of preventing or limiting damage to property resulting from action taken as mentioned in paragraph (a), (b) or (c).'' 
However, what is not provided for is the case that I have in mind: breaking into premises to prevent the outbreak of fire. A firefighter, using his skill and knowledge, might have a reasonable expectation that a fire is about to break out. For example, if he is aware that a gas leak has occurred on the premises and that there is also a source of naked flame, he might reasonably conclude that, unless he can get in there and do something about it, a fire will break out. It would be absurd if he had to wait outside until the explosion occurred, or until he saw the fire, before he could break into the premises and deal with the situation. That would not be in anybody's interest. 
 The only reason that I can see for the Minister to reject the amendment is if he can show the Committee that firefighters enjoy that power by virtue of some other provision. I have not been able to find such a provision, but I am ready to be enlightened. Such power is essential and if it does not exist, firefighters must have it. They tell us that they need it, and its absence is a gap in the panoply of powers that the clause confers on them.

Hugo Swire: Can my hon. Friend also envisage a time when firefighters might need not only to enter a building, but to demolish it in order to prevent a fire
 from spreading and getting more serious? For instance, in an area in which there was a row of thatched houses, there could be a makeshift building in between the building in which the fire broke out and that row of houses. Firefighters might need not only to break into that building, but perhaps even to destroy it in some way.

Philip Hammond: My hon. Friend is right. We have all seen news footage of massive fires in Australia and in the American west. It was necessary to create fire-breaks there, and although we have not, I hope, had to do that for a very long time in this country, it was the traditional method of containing very large fires in big cities. I believe that the power to demolish buildings would be included within the powers given by clause 43, in cases where a fire has broken out. The fire authorities tell me that that is a good codification of their existing powers. It deals effectively and adequately with the powers that they need in case of an outbreak of fire, or of a road traffic accident, but it does not allow them to take any preventive action.
 Amendment No. 130 deals with a slightly different point in relation to subsection (1)(c). That subsection give powers to firefighters in case of an emergency of another kind, in respect of which functions have been conferred on the fire and rescue authority. That is what we might call a ''section 9'' emergency, in respect of which the Secretary of State has conferred functions on the authority. The powers given under subsection (1)(c) are: 
''for the purpose of discharging any function conferred on the fire and rescue authority in relation to the emergency''. 
So unless the conferring of the function specifically includes the function of protecting life and property, that power could not be exercised under the provisions of that subsection in order to protect life and property. The Minister may well envisage that every function that he confers under clause 9 will include the specific function of protecting life and property. But this amendment seeks to make that a general provision, so that whatever the function being discharged under clause 9—be it a function of preventing, or of rescuing people from, flooding; or a function of cleaning up the after-effects of nuclear or chemical contamination—there will always be an overarching reference to the function of protecting life and property. That would authorise a member of the fire and rescue authority in the way envisaged in the clause. That would return the focus to the principal purpose that a fire and rescue authority and its employees must have in mind—protecting life and property. I hope that the Minister accepts that this amendment focuses on that prime responsibility.

John Pugh: I have been somewhat picky about the amendments tabled by the hon. Member for Runnymede and Weybridge hitherto, but I must say that I consider amendment No. 129 a splendid amendment. It is surprising that the people who drafted the legislation did not include it, because the whole thrust of the Bill is about prevention—on acting
 before fires occur—rather than on regarding the fire service simply as an organisation that extinguishes fires and deals with the after-effects of a disaster.
 I have questioned why such an amendment was not included, and I have come to the conclusion that those who drafted the legislation were a little concerned that this might be too wide a power and could be used injudiciously. We would all support the idea that where there is a danger of a serious chemical incident, action should be taken to prevent it, rather than simply dealing with its after-effects. However, issues such as access to industrial premises and consequent litigation may have arisen, which perhaps held them back from 
 including in the Bill a clause such as the amendment moved by the hon. Gentleman. We would not welcome fire and rescue services bursting into our houses if we were playing with matches or lighting bonfires. Clearly, one expects the fire services to use such a power judiciously.

Philip Hammond: I am grateful to the hon. Gentleman for allowing me to intervene on him in order to make a point that I forgot to make earlier.
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past Two o'clock.